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Petitioner,
 Present:

YNARES-SANTIAGO, ë

 


  

 AUSTRIA-MARTINEZ,

CHICO-NAZARIO
NACHURA, and
REYES, ëë.

Promulgated:
'!c'!""
Respondent. October 17, 2008

x--------------------------------------------------x

!

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THIS case portrays the peculiar story of an international flight steward who was dismissed
because of his failure to adhere to the weight standards of the airline company.

He is now before this Court via a petition for review on p  claiming that he was
illegally dismissed. To buttress his stance, he argues that (1) his dismissal does not fall under
282(e) of the Labor Code; (2) continuing adherence to the weight standards of the company is
not a bona fide occupational qualification; and (3) he was discriminated against because other
overweight employees were promoted instead of being disciplined.

After a meticulous consideration of all arguments  and p, We uphold the legality of

dismissal. Separation pay, however, should be awarded in favor of the employee as an act of social
justice or based on equity. This is so because his dismissal is not for serious misconduct. Neither is
it reflective of his moral character.
  )


Petitioner Armando G. Yrasuegui was a former international flight steward of Philippine

Airlines, Inc. (PAL). He stands five feet and eight inches (5ǯ8dz) with a large body frame. The proper
weight for a man of his height and body structure is from 147 to 166 pounds, the ideal weight being
166 pounds, as mandated by the Cabin and Crew Administration Manual of PAL.

The weight problem of petitioner dates back to 1984. Back then, PAL advised him to go on
an extended vacation leave from December 29, 1984 to March 4, 1985 to address his weight
concerns. Apparently, petitioner failed to meet the companyǯs weight standards, prompting
another leave without pay from March 5, 1985 to November 1985.

After meeting the required weight, petitioner was allowed to return to work. But
petitionerǯs weight problem recurred. He again went on leave without pay from October 17, 1988
to February 1989.

On April 26, 1989, petitioner weighed 209 pounds, 43 pounds over his ideal weight. In line
with company policy, he was removed from flight duty effective May 6, 1989 to July 3, 1989. He
was formally requested to trim down to his ideal weight and report for weight checks on several
dates. He was also told that he may avail of the services of the company physician should he
wish to do so. He was advised that his case will be evaluated on July 3, 1989.

On February 25, 1989, petitioner underwent weight check. It was discovered that he
gained, instead of losing, weight. He was overweight at 215 pounds, which is 49 pounds beyond the
limit. Consequently, his off-duty status was retained.

On October 17, 1989, PAL Line Administrator Gloria Dizon personally visited petitioner at
his residence to check on the progress of his effort to lose weight. Petitioner weighed 217 pounds,
gaining 2 pounds from his previous weight. After the visit, petitioner made a commitment to
reduce weight in a letter addressed to Cabin Crew Group Manager Augusto Barrios. The letter, in
full, reads:

Dear Sir:
 I would like to guaranty my commitment towards a weight loss from 217
pounds to 200 pounds from today until 31 Dec. 1989.

From thereon, I promise to continue reducing at a reasonable percentage

until such time that my ideal weight is achieved.

Likewise, I promise to personally report to your office at the designated time

schedule you will set for my weight check.

Respectfully Yours,
F/S Armando Yrasuegui

Despite the lapse of a ninety-day period given him to reach his ideal weight, petitioner
remained overweight. On January 3, 1990, he was informed of the PAL decision for him to remain
grounded until such time that he satisfactorily complies with the weight standards. Again, he was
directed to report every two weeks for weight checks.

Petitioner failed to report for weight checks. Despite that, he was given one more month to
comply with the weight requirement. As usual, he was asked to report for weight check on different
dates. He was reminded that his grounding would continue pending satisfactory compliance with
the weight standards.

Again, petitioner failed to report for weight checks, although he was seen submitting his
passport for processing at the PAL Staff Service Division.

On April 17, 1990, petitioner was formally warned that a repeated refusal to report for
weight check would be dealt with accordingly. He was given another set of weight check dates.
Again, petitioner ignored the directive and did not report for weight checks. On June 26, 1990,
petitioner was required to explain his refusal to undergo weight checks.

When petitioner tipped the scale on July 30, 1990, he weighed at 212 pounds. Clearly, he
was still way over his ideal weight of 166 pounds.

From then on, nothing was heard from petitioner until he followed up his case requesting
for leniency on the latter part of 1992. He weighed at 219 pounds on August 20, 1992 and 205
pounds on November 5, 1992.
 On November 13, 1992, PAL finally served petitioner a Notice of Administrative Charge for
violation of company standards on weight requirements. He was given ten (10) days from receipt
of the charge within which to file his answer and submit controverting evidence.

On December 7, 1992, petitioner submitted his Answer. Notably, he did not deny being
overweight. What he claimed, instead, is that his violation, if any, had already been condoned by
PAL since Dzno action has been taken by the companydz regarding his case Dzsince 1988.dz He also
claimed that PAL discriminated against him because Dzthe company has not been fair in treating the
cabin crew members who are similarly situated.dz

On December 8, 1992, a clarificatory hearing was held where petitioner manifested that he
was undergoing a weight reduction program to lose at least two (2) pounds per week so as to attain
his ideal weight.

On June 15, 1993, petitioner was formally informed by PAL that due to his inability to attain
his ideal weight, Dzand considering the utmost leniencydz extended to him Dzwhich spanned a period
covering a total of almost five (5) years,dz his services were considered terminated Dzeffective
immediately.dz

His motion for reconsideration having been denied, petitioner filed a complaint for illegal
dismissal against PAL.

'
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On November 18, 1998, Labor Arbiter Valentin C. Reyes ruled that petitioner was illegally
dismissed. The dispositive part of the Arbiter ruling runs as follows:
 WHEREFORE, in view of the foregoing, judgment is hereby rendered,
declaring the complainantǯs dismissal illegal, and ordering the respondent to
reinstate him to his former position or substantially equivalent one, and to pay him:

a. Backwages of Php10,500.00 per month from his dismissal on June 15,

1993 until reinstated, which for purposes of appeal is hereby set from June 15, 1993
up to August 15, 1998 at P651,000.00;

b. Attorneyǯs fees of five percent (5%) of the total award.

SO ORDERED.

The Labor Arbiter held that the weight standards of PAL are reasonable in view of the
nature of the job of petitioner. However, the weight standards need not be complied with under
pain of dismissal since his weight did not hamper the performance of his duties. Assuming that it
did, petitioner could be transferred to other positions where his weight would not be a negative
factor. Notably, other overweight employees, i.e., Mr. Palacios, Mr. Cui, and Mr. Barrios, were
promoted instead of being disciplined.

Both parties appealed to the National Labor Relations Commission (NLRC).

On October 8, 1999, the Labor Arbiter issued a writ of execution directing the reinstatement
of petitioner without loss of seniority rights and other benefits.

On February 1, 2000, the Labor Arbiter denied the Motion to Quash Writ of Execution of
PAL.

On March 6, 2000, PAL appealed the denial of its motion to quash to the NLRC.

On June 23, 2000, the NLRC rendered judgment in the following tenor:

r!c!)c!, premises considered[,] the Decision of the Arbiter dated 18

November 1998 as modified by our findings herein, is hereby A))c!and that
part of the dispositive portion of said decision concerning complainantǯs entitlement
to backwages shall be deemed to refer to complainantǯs entitlement to his full
backwages, inclusive of allowances and to his other benefits or their monetary
equivalent instead of simply backwages, from date of dismissal until his actual
reinstatement or finality hereof. Respondent is enjoined to manifests (
p) its choice
of the form of the reinstatement of complainant, whether physical or through
 payroll within ten (10) days from notice failing which, the same shall be deemed as
complainantǯs reinstatement through payroll and execution in case of non-payment
shall accordingly be issued by the Arbiter. Both appeals of respondent thus, are
!for utter lack of merit.

According to the NLRC, Dzobesity, or the tendency to gain weight uncontrollably regardless of
the amount of food intake, is a disease in itself.dz As a consequence, there can be no intentional
defiance or serious misconduct by petitioner to the lawful order of PAL for him to lose weight.

Like the Labor Arbiter, the NLRC found the weight standards of PAL to be reasonable.
However, it found as unnecessary the Labor Arbiter holding that petitioner was not remiss in the
performance of his duties as flight steward despite being overweight. According to the NLRC, the
Labor Arbiter should have limited himself to the issue of whether the failure of petitioner to
attain his ideal weight constituted willful defiance of the weight standards of PAL.

PAL moved for reconsideration to no avail. Thus, PAL elevated the matter to the Court of
Appeals (CA) via a petition for p under Rule 65 of the 1997 Rules of Civil Procedure.

By Decision dated August 31, 2004, the CA reversed the NLRC:

WHEREFORE, premises considered, we hereby GRANT the petition. The

assailed NLRC decision is declared NULL and VOID and is hereby SET ASIDE. The
private respondentǯs complaint is hereby DISMISSED. No costs.

SO ORDERED.

The CA opined that there was grave abuse of discretion on the part of the NLRC because it
Dzlooked at wrong and irrelevant considerationsdz in evaluating the evidence of the parties. Contrary
to the NLRC ruling, the weight standards of PAL are meant to be a continuing qualification for an
employeeǯs position. The failure to adhere to the weight standards is an analogous cause for the
dismissal of an employee under Article 282(e) of the Labor Code in relation to Article 282(a). It is
not willful disobedience as the NLRC seemed to suggest. Said the CA, Dzthe element of willfulness
that the NLRC decision cites is an irrelevant consideration in arriving at a conclusion on whether
the dismissal is legally proper.dz In other words, Dzthe relevant question to ask is not one of
willfulness but one of reasonableness of the standard and whether or not the employee qualifies or
continues to qualify under this standard.dz

Just like the Labor Arbiter and the NLRC, the CA held that the weight standards of PAL are
reasonable. Thus, petitioner was legally dismissed because he repeatedly failed to meet the
prescribed weight standards. It is obvious that the issue of discrimination was only invoked by
petitioner for purposes of escaping the result of his dismissal for being overweight.

On May 10, 2005, the CA denied petitionerǯs motion for reconsideration. Elaborating on its
earlier ruling, the CA held that the weight standards of PAL are a bona fide occupational
qualification which, in case of violation, Dzjustifies an employeeǯs separation from the service.dz

 

In this Rule 45 petition for review, the following issues are posed for resolution:

I.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING
THAT PETITIONERǯS OBESITY CAN BE A GROUND FOR DISMISSAL UNDER
PARAGRAPH (e) OF ARTICLE 282 OF THE LABOR CODE OF THE PHILIPPINES;

II.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING
THAT PETITIONERǯS DISMISSAL FOR OBESITY CAN BE PREDICATED ON THE
DzBONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ) DEFENSEdz;

III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING
THAT PETITIONER WAS NOT UNDULY DISCRIMINATED AGAINST WHEN HE WAS
 DISMISSED WHILE OTHER OVERWEIGHT CABIN ATTENDANTS WERE EITHER
GIVEN FLYING DUTIES OR PROMOTED;

IV.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED WHEN IT
BRUSHED ASIDE PETITIONERǯS CLAIMS FOR REINSTATEMENT [AND] WAGES
ALLEGEDLY FOR BEING MOOT AND ACADEMIC. (Underscoring supplied)

c +

  
, 


 + * * * 
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 '
* .


A reading of the weight standards of PAL would lead to no other conclusion than that they
constitute a continuing qualification of an employee in order to keep the job. Tersely put, an
employee may be dismissed the moment he is unable to comply with his ideal weight as prescribed
by the weight standards. The dismissal of the employee would thus fall under Article 282(e) of the
Labor Code. As explained by the CA:

x x x [T]he standards violated in this case were not mere Dzordersdz of the
employer; they were the Dzprescribed weightsdz that a cabin crew must maintain Y




Y



Y


YY
Y

 . In other words,
they were standards that establish  Y Y 

YY Y 
for an employeeǯs
position. In this sense, the failure to maintain these standards does not fall under
Article 282(a) whose express terms require the element of willfulness in order to be
a ground for dismissal. The failure to meet the employerǯs 
YY 
   is
in fact a ground that does not squarely fall under grounds (a) to (d) and is therefore
one that falls under Article 282(e) Ȃ the Dzother causes analogous to the foregoing.dz

By its nature, these Dzqualifying standardsdz are norms that apply Y




an employee is hired. They applyY


 
because these are the
standards a job applicant must initially meet in order to be hired. They apply 

YY 
because an employee must continue to meet these standards while on the job
in order to keep his job. Under this perspective, a violation is not one of the faults
for which an employee can be dismissed pursuant to pars. (a) to (d) of Article 282;
the employee can be dismissed simply because he no longer Dzqualifiesdz for his job
irrespective of whether or not the failure to qualify was willful or intentional. x x x
 Petitioner, though, advances a very interesting argument. He claims that obesity is a Dzphysical
abnormality and/or illness.dz Relying on !   
 
p , he says his dismissal
is illegal:

Conscious of the fact that Naduraǯs case cannot be made to fall squarely within
the specific causes enumerated in subparagraphs 1(a) to (e), Benguet invokes the
provisions of subparagraph 1(f) and says that Naduraǯs illness Ȃ occasional attacks
of asthma Ȃ is a cause analogous to them.

Even a cursory reading of the legal provision under consideration is sufficient

to convince anyone that, as the trial court said, Dzillness cannot be included as an
analogous cause by any stretch of imagination.dz

It is clear that, except the

p
mentioned in sub-paragraph 1(a), all the
others expressly enumerated in the law are due to the voluntary and/or willful act
of the employee. How Naduraǯs illness could be considered as Dzanalogousdz to any of
them is beyond our understanding, there being no claim or pretense that the same
was contracted through his own voluntary act.

The reliance on ! is off-tangent. The factual milieu in !is substantially different
from the case at bar. First,! was not decided under the Labor Code. The law applied in that
case was Republic Act (RA) No. 1787. Second, the issue of flight safety is absent in !, thus, the
rationale there cannot apply here. Third, in!, the employee who was a miner, was laid off
from work because of illness, i.e., asthma. Here, petitioner was dismissed for his failure to meet the
weight standards of PAL. He was not dismissed due to illness. Fourth, the issue in! is
whether or not the dismissed employee is entitled to separation pay and damages. Here, the issue
centers on the propriety of the dismissal of petitioner for his failure to meet the weight standards of
PAL. Fifth, in !, the employee was not accorded due process. Here, petitioner was accorded
utmost leniency. He was given more than four (4) years to comply with the weight standards of
PAL.

In the case at bar, the evidence on record militates against petitionerǯs claims that obesity is
a disease. That he was able to reduce his weight from 1984 to 1992 clearly shows that it is possible
for him to lose weight given the proper attitude, determination, and self-discipline. Indeed, during
the clarificatory hearing on December 8, 1992, petitioner himself claimed that Dz[t]he issue is could I
bring my weight down to ideal weight which is 172, then the answer is yes. I can do it now.dz
 True, petitioner claims that reducing weight is costing him Dza lot of expenses.dz However,
petitioner has only himself to blame. He could have easily availed the assistance of the company
physician, per the advice of PAL. He chose to ignore the suggestion. In fact, he repeatedly failed to
report when required to undergo weight checks, without offering a valid explanation. Thus, his
fluctuating weight indicates absence of willpower rather than an illness.

Petitioner cites     


    

 

, decided by the United States Court of Appeals (First Circuit). In that
case, Cook worked from 1978 to 1980 and from 1981 to 1986 as an institutional attendant for the
mentally retarded at the Ladd Center that was being operated by respondent. She twice resigned
voluntarily with an unblemished record. Even respondent admitted that her performance met the
Centerǯs legitimate expectations. In 1988, Cook re-applied for a similar position. At that time, Dzshe
stood 5ǯ2dz tall and weighed over 320 pounds.dz Respondent claimed that the morbid obesity of
plaintiff compromised her ability to evacuate patients in case of emergency and it also put her at
greater risk of serious diseases.

Cook contended that the action of respondent amounted to discrimination on the basis of a
handicap. This was in direct violation of Section 504(a) of the Rehabilitation Act of 1973, which
incorporates the remedies contained in Title VI of the Civil Rights Act of 1964. Respondent claimed,
however, that morbid obesity could never constitute a handicap within the purview of the
Rehabilitation Act. Among others, obesity is a mutable condition, thus plaintiff could simply lose
weight and rid herself of concomitant disability.

The appellate Court disagreed and held that morbid obesity is a disability under the
Rehabilitation Act and that respondent discriminated against Cook based on Dzperceiveddz disability.
The evidence included expert testimony that morbid obesity is a physiological disorder. It involves
a dysfunction of both the metabolic system and the neurological appetite Ȃ suppressing signal
system, which is capable of causing adverse effects within the musculoskeletal, respiratory, and
cardiovascular systems. Notably, the Court stated that Dzmutability is relevant only in determining
the substantiality of the limitation flowing from a given impairment,dz thus Dzmutability only
precludes those conditions that an individual can easily and quickly reverse by behavioral
alteration.dz
 Unlike Cook, however, petitioner is not morbidly obese. In the words of the District Court
for the District of Rhode Island, Cook was sometime before 1978 Dzat least one hundred pounds
more than what is considered appropriate of her height.dz According to the Circuit Judge, Cook
weighed Dzover 320 poundsdz in 1988. Clearly, that is not the case here. At his heaviest, petitioner
was only less than 50 pounds over his ideal weight.

In fine, We hold that the obesity of petitioner, when placed in the context of his work as
flight attendant, becomes an analogous cause under Article 282(e) of the Labor Code that justifies
his dismissal from the service. His obesity may not be unintended, but is nonetheless voluntary. As
the CA correctly puts it, Dz[v]oluntariness basically means that the just cause is solely attributable to
the employee without any external force influencing or controlling his actions. This element runs
through all just causes under Article 282, whether they be in the nature of a wrongful action or
omission. Gross and habitual neglect, a recognized just cause, is considered voluntary although it
lacks the element of intent found in Article 282(a), (c), and (d).dz

   *  


     
 *
*  
    *  

 
0 
 *  .

Employment in particular jobs may not be limited to persons of a particular sex, religion, or
national origin unless the employer can show that sex, religion, or national origin is an actual
qualification for performing the job. The qualification is called a bona fide occupational
qualification (BFOQ). In the United States, there are a few federal and many state job
discrimination laws that contain an exception allowing an employer to engage in an otherwise
unlawful form of prohibited discrimination when the action is based on a BFOQ necessary to the
normal operation of a business or enterprise.

Petitioner contends that BFOQ is a statutory defense. It does not exist if there is no statute
providing for it. Further, there is no existing BFOQ statute that could justify his dismissal.
 Both arguments must fail.

First, the Constitution, the Labor Code, and RA No. 7277 or the Magna Carta for Disabled
Persons contain provisions similar to BFOQ.

Second, in 
  p  p  !"  

 # !$   %  


 &     p  !" '
 ( #&!($, the Supreme Court of Canada
adopted the so-called DzMeiorin Testdz in determining whether an employment policy is justified.
Under this test, (1) the employer must show that it adopted the standard for a purpose rationally
connected to the performance of the job; (2) the employer must establish that the standard is
reasonably necessary to the accomplishment of that work-related purpose; and (3) the employer
must establish that the standard is reasonably necessary in order to accomplish the legitimate
work-related purpose. Similarly, in    , this Court held that in order to
justify a BFOQ, the employer must prove that (1) the employment qualification is reasonably
related to the essential operation of the job involved; and (2) that there is factual basis for believing
that all or substantially all persons meeting the qualification would be unable to properly perform
the duties of the job.

In short, the test of reasonableness of the company policy is used because it is parallel to
BFOQ. BFOQ is valid Dzprovided it reflects an inherent quality reasonably necessary for
satisfactory job performance.dz

In p )

p    %&*%+   &, * p  

 p , the Court
did not hesitate to pass upon the validity of a company policy which prohibits its employees from
marrying employees of a rival company. It was held that the company policy is reasonable
considering that its purpose is the protection of the interests of the company against possible
competitor infiltration on its trade secrets and procedures.

Verily, there is no merit to the argument that BFOQ cannot be applied if it has no supporting
statute. Too, the Labor Arbiter, NLRC, and CA are one in holding that the weight standards of PAL
are reasonable. A common carrier, from the nature of its business and for reasons of public policy,
is bound to observe extraordinary diligence for the safety of the passengers it transports. It is
bound to carry its passengers safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with due regard for all the circumstances.

The law leaves no room for mistake or oversight on the part of a common carrier. Thus, it is
only logical to hold that the weight standards of PAL show its effort to comply with the exacting
obligations imposed upon it by law by virtue of being a common carrier.
The business of PAL is air transportation. As such, it has committed itself to safely transport
its passengers. In order to achieve this, it must necessarily rely on its employees, most particularly
the cabin flight deck crew who are on board the aircraft. The weight standards of PAL should be
viewed as imposing strict norms of discipline upon its employees.

In other words, the primary objective of PAL in the imposition of the weight standards for
cabin crew is flight safety. It cannot be gainsaid that cabin attendants must maintain agility at all
times in order to inspire passenger confidence on their ability to care for the passengers when
something goes wrong. It is not farfetched to say that airline companies, just like all common
carriers, thrive due to public confidence on their safety records. People, especially the riding public,
expect no less than that airline companies transport their passengers to their respective
destinations safely and soundly. A lesser performance is unacceptable.

The task of a cabin crew or flight attendant is not limited to serving meals or attending to
the whims and caprices of the passengers. The most important activity of the cabin crew is to care
for the safety of passengers and the evacuation of the aircraft when an emergency occurs.
Passenger safety goes to the core of the job of a cabin attendant. Truly, airlines need cabin
attendants who have the necessary strength to open emergency doors, the agility to attend to
passengers in cramped working conditions, and the stamina to withstand grueling flight schedules.

On board an aircraft, the body weight and size of a cabin attendant are important factors to
consider in case of emergency. Aircrafts have constricted cabin space, and narrow aisles and exit
doors. Thus, the arguments of respondent that Dz[w]hether the airlineǯs flight attendants are
overweight or not has no direct relation to its mission of transporting passengers to their
destinationdz; and that the weight standards Dzhas nothing to do with airworthiness of respondentǯs
airlines,dz must fail.

The rationale in *
 )-
 
. relied upon by petitioner cannot apply to his
case. What was involved there were two (2) airline pilots who were denied reassignment as flight
engineers upon reaching the age of 60, and a flight engineer who was forced to retire at age 60.
They sued the airline company, alleging that the age-60 retirement for flight engineers violated the
Age Discrimination in Employment Act of 1967. Age-based BFOQ and being overweight are not the
same. The case of overweight cabin attendants is another matter. Given the cramped cabin space
and narrow aisles and emergency exit doors of the airplane, any overweight cabin attendant would
certainly have difficulty navigating the cramped cabin area.

In short, there is no need to individually evaluate their ability to perform their task. That an
obese cabin attendant occupies more space than a slim one is an unquestionable fact which courts
can judicially recognize without introduction of evidence. It would also be absurd to require airline
companies to reconfigure the aircraft in order to widen the aisles and exit doors just to
accommodate overweight cabin attendants like petitioner.

The biggest problem with an overweight cabin attendant is the possibility of impeding
passengers from evacuating the aircraft, should the occasion call for it. The job of a cabin attendant
during emergencies is to speedily get the passengers out of the aircraft safely. Being overweight
necessarily impedes mobility. Indeed, in an emergency situation, seconds are what cabin
attendants are dealing with, not minutes. Three lost seconds can translate into three lost lives.
Evacuation might slow down just because a wide-bodied cabin attendant is blocking the narrow
aisles. These possibilities are not remote.
 Petitioner is also in estoppel. He does not dispute that the weight standards of PAL were
made known to him prior to his employment. He is presumed to know the weight limit that he
must maintain at all times. In fact, never did he question the authority of PAL when he was
repeatedly asked to trim down his weight. 
 ,/p . Good faith
demands that what is agreed upon shall be done.  

 

  
 
 Y


    .

Too, the weight standards of PAL provide for separate weight limitations based on height
and body frame for both male and female cabin attendants. A progressive discipline is imposed to
allow non-compliant cabin attendants sufficient opportunity to meet the weight standards. Thus,
the clear-cut rules obviate any possibility for the commission of abuse or arbitrary action on the
part of PAL.

 

   *
 


  

   1 * 
* + 
 ,
'.

Petitioner next claims that PAL is using passenger safety as a convenient excuse to
discriminate against him. We are constrained, however, to hold otherwise. We agree with the CA
that Dz[t]he element of discrimination came into play in this case as a secondary position for the
private respondent in order to escape the consequence of dismissal that being overweight entailed.
It is a confession-and-avoidance position that impliedly admitted the cause of dismissal, including
the reasonableness of the applicable standard and the private respondentǯs failure to comply.dz It is
a basic rule in evidence that each party must prove his affirmative allegation.
Since the burden of evidence lies with the party who asserts an affirmative allegation,
petitioner has to prove his allegation with particularity. There is nothing on the records which
could support the finding of discriminatory treatment. Petitioner cannot establish discrimination by
simply naming the supposed cabin attendants who are allegedly similarly situated with him.
Substantial proof must be shown as to how and why they are similarly situated and the differential
treatment petitioner got from PAL despite the similarity of his situation with other employees.
 Indeed, except for pointing out the names of the supposed overweight cabin attendants,
petitioner miserably failed to indicate their respective ideal weights; weights over their ideal
weights; the periods they were allowed to fly despite their being overweight; the particular flights
assigned to them; the discriminating treatment they got from PAL; and other relevant data that
could have adequately established a case of discriminatory treatment by PAL. In the words of the
CA, DzPAL really had no substantial case of discrimination to meet.dz

We are not unmindful that findings of facts of administrative agencies, like the Labor
Arbiter and the NLRC, are accorded respect, even finality. The reason is simple: administrative
agencies are experts in matters within their specific and specialized jurisdiction. But the principle
is not a hard and fast rule. It only applies if the findings of facts are duly supported by substantial
evidence. If it can be shown that administrative bodies grossly misappreciated evidence of such
nature so as to compel a conclusion to the contrary, their findings of facts must necessarily be
reversed. Factual findings of administrative agencies do not have infallibility and must be set aside
when they fail the test of arbitrariness.

Here, the Labor Arbiter and the NLRC inexplicably misappreciated evidence. We thus annul
their findings.

To make his claim more believable, petitioner invokes the equal protection clause guaranty
of the Constitution. However, in the absence of governmental interference, the liberties guaranteed
by the Constitution cannot be invoked. Put differently, the Bill of Rights is not meant to be invoked
against acts of private individuals. Indeed, the United States Supreme Court, in interpreting the
Fourteenth Amendment, which is the source of our equal protection guarantee, is consistent in
saying that the equal protection erects no shield against private conduct, however
discriminatory or wrongful. Private actions, no matter how egregious, cannot violate the equal
protection guarantee.

  


    


 *1+  
.
 As his last contention, petitioner avers that his claims for reinstatement and wages have not
been mooted. He is entitled to reinstatement and his full backwages, Dzfrom the time he was illegally
dismisseddz up to the time that the NLRC was reversed by the CA.

At this point, Article 223 of the Labor Code finds relevance:

In any event, the decision of the Labor Arbiter reinstating a dismissed or

separated employee, insofar as the reinstatement aspect is concerned, shall
immediately be executory, even pending appeal. The employee shall either be
admitted back to work under the same terms and conditions prevailing prior to his
dismissal or separation or, at the option of the employer, merely reinstated in the
payroll. The posting of a bond by the employer shall not stay the execution for
reinstatement provided herein.

The law is very clear. Although an award or order of reinstatement is self-executory and
does not require a writ of execution, the option to exercise actual reinstatement or payroll
reinstatement belongs to the employer. It does not belong to the employee, to the labor tribunals,
or even to the courts.

Contrary to the allegation of petitioner that PAL Dzdid everything under the sundz to frustrate
his Dzimmediate return to his previous position,dz there is evidence that PAL opted to physically
reinstate him to a substantially equivalent position in accordance with the order of the Labor
Arbiter. In fact, petitioner duly received the return to work notice on February 23, 2001, as shown
by his signature.

Petitioner cannot take refuge in the pronouncements of the Court in a case that Dz[t]he
unjustified refusal of the employer to reinstate the dismissed employee entitles him to payment of
his salaries effective from the time the employer failed to reinstate him despite the issuance of a
writ of executiondz and Dzdzeven if the order of reinstatement of the Labor Arbiter is reversed on
appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the employee
during the period of appeal until reversal by the higher court.dz He failed to prove that he complied
with the return to work order of PAL. Neither does it appear on record that he actually rendered
services for PAL from the moment he was dismissed, in order to insist on the payment of his full
backwages.
 In insisting that he be reinstated to his actual position despite being overweight, petitioner
in effect wants to render the issues in the present case moot. He asks PAL to comply with the
impossible. Time and again, the Court ruled that the law does not exact compliance with the
impossible.



 

 *


 
,.

Be that as it may, all is not lost for petitioner.

Normally, a legally dismissed employee is not entitled to separation pay. This may be
deduced from the language of Article 279 of the Labor Code that Dz[a]n employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of seniority rights and other
privileges and to his full backwages, inclusive of allowances, and to his other benefits or their
monetary equivalent computed from the time his compensation was withheld from him up to the
time of his actual reinstatement.dz Luckily for petitioner, this is not an ironclad rule.

Exceptionally, separation pay is granted to a legally dismissed employee as an act Dzsocial

justice,dz or based on Dzequity.dz In both instances, it is required that the dismissal (1) was not for
serious misconduct; and (2) does not reflect on the moral character of the employee.

Here, We grant petitioner separation pay equivalent to one-half (1/2) monthǯs pay for every
year of service. It should include regular allowances which he might have been receiving. We are
not blind to the fact that he was not dismissed for any serious misconduct or to any act which
would reflect on his moral character. We also recognize that his employment with PAL lasted for
more or less a decade.

r!c!)c!, the appealed Decision of the Court of Appeals is ))c! but )!
in that petitioner Armando G. Yrasuegui is entitled to separation pay in an amount equivalent to
one-half (1/2) monthǯs pay for every year of service, which should include his regular allowances

c!c!.



 c 2!c!!
Associate Justice